• West Virginia – Not EPA – Will Develop Water Quality Improvement Plans
  • July 20, 2018 | Authors: Robert M. Stonestreet; Christopher "Kip" B. Power
  • Law Firm: Babst Calland - Charleston Office
  • On West Virginia’s 155th birthday, the Fourth Circuit Court of Appeals vindicated the state’s approach to developing plans for improving the quality of its waterways. The appeals court reversed a lower court decision that concluded West Virginia had failed to timely submit such plans to the federal Environmental Protection Agency (EPA) for approval, which could have required the EPA to supplant West Virginia’s role in developing those plans. A brief background on the applicable law and circumstances of the litigation will help provide context for understanding the ruling.

    The federal Clean Water Act requires states who administer approved water pollution control programs to take certain actions and make a multitude of different submissions to the EPA reflecting those actions. These submissions include proposed water quality standards, draft permits, reports on the health of a state’s waterways, and action plans to address waterways determined to be impaired. The Clean Water Act requires the EPA to approve or disapprove certain of these state submissions, such as plans to improve the quality of impaired waters through the development of “total maximum daily loads” for the waterbody (TMDLs). TMDLs are essentially calculations of the maximum volume of certain pollutants that can be discharged into a waterway and still allow the waterway to achieve compliance with water quality standards – i.e. no longer be impaired. Once a TMDL is adopted, a “waste load allocation” based on the TMDL is used to calculate effluent limits for those who hold permits to discharge into that waterbody so that the total cumulative discharged concentration of the pollutant at issue does not exceed the TMDL.

    Many TMDLs address numeric water quality standards, which as the name suggests, are numeric concentrations of various substances that may exist in waterways without impairing the designated uses of the water. Another type of water quality standard is a narrative criteria. Rather than establish a maximum numeric value for a substance, narrative criteria prohibit certain conditions from existing in a waterway, such as foam or oily slicks, sludge deposits, or taste or odor that adversely affects use of the water. In West Virginia, narrative standards also include a biological component that generally prohibits “materials in concentrations which are harmful, hazardous or toxic to . . . aquatic life” and conditions that have a “significant adverse impact” on the biological components of aquatic ecosystems.

    If the EPA disapproves a state’s proposed TMDL, the Clean Water Act requires the EPA to proceed with promulgating the TMDL for that state. What happens if a state does not submit TMDLs, or does not submit TMDLs to address certain conditions believed to cause impairment of a waterbody? May the EPA, or a court, deem the failure to submit a TMDL a “constructive submission” of no TMDL that the EPA must approve or disapprove, and thus potentially trigger the EPA’s obligation to promulgate the TMDLs?

    In 2015, a coalition of four environmental advocacy groups lead by the Ohio Valley Environmental Coalition (OVEC) filed suit against the EPA seeking a court order that West Virginia made such a “constructive submission” of no TMDLs to address streams failing to meet West Virginia’s biological component of the narrative water quality standards due to “ionic toxicity.” Ionic toxicity refers to the adverse impact on certain aquatic life from the concentration of dissolved minerals in the water (often referred to as conductivity). Permitted discharges from mining operations, construction activity, wastewater treatment plants, and other industrial operations can contain concentrations of dissolved minerals exceeding the background levels present in a receiving waterbody.

    At the time OVEC filed suit in 2015, West Virginia estimated that TMDLs would be submitted to the EPA on a rolling basis during the years 2020 to 2025 to address biological impairment of waterways due to ionic toxicity. OVEC argued that West Virginia’s failure to develop such TMDLs sooner amounted to “constructive submission” of no TMDLs for ionic toxicity that the EPA must approve or disapprove. One reason for the projected timeline was the state’s ongoing effort to adopt a new methodology for evaluating the biological health of a waterbody. Prior to 2012, West Virginia used the “West Virginia Stream Condition Index” (WVSCI) methodology to identify biologically impaired waters. WVSCI focuses on populations of certain benthic macroinvertebrate organisms in a waterbody to evaluate biological health, such as insects, crayfish, worms, mussels, etc. In 2012, the West Virginia Legislature amended the West Virginia Water Pollution Control Act to require the biological health of state waterways be evaluated using a methodology that employs a more holistic and broader evaluation of stream health than WVSCI. When OVEC filed suit in 2015, West Virginia was still working toward development of a methodology that would comply with this legislative directive.

    In February, 2017, the District Court for the Southern District of West Virginia, Judge Robert C. Chambers presiding, ruled in OVEC’s favor and directed the EPA to take action to approve or disapprove West Virginia’s “constructive submission” of no TMDLs for ionic toxicity. The EPA then approved this “constructive submission” and reached an agreement with West Virginia on a schedule for the state to complete its ionic toxicity TMDLs no later than June 30, 2026. At the same time, the EPA also appealed the district court’s order on the grounds that West Virginia had not made a “constructive submission” of no TMDLs.

    In its June 20, 2018 decision, a unanimous three-judge panel of the Fourth Circuit Court of Appeals reversed the district court’s decision. In its opinion, the court observed that other federal appeals courts have recognized the “constructive submission” doctrine in litigation against the EPA involving delays or failures by state governments to submit TMDLs. In only one case, however, had a court determined that a state’s failure to submit TMDLs qualified as “constructive submission” of no TMDLs. In that case, the state had not submitted a single TMDL in 10 years and had not even completed the first stage of TMDL development. By contrast, West Virginia had submitted a number of TMDLs over the years to the EPA for approval, and was working toward development of ionic toxicity TMDLs on a reasonable schedule.

    In reaching its decision, the Fourth Circuit did not adopt or reject the “constructive submission” doctrine. Rather, the court ruled that if the doctrine were to apply, it would not be satisfied in this case for three reasons. First, West Virginia has submitted a number of TMDLs to the EPA to address specific pollutants that likely contribute to biological impairment. Second, the state is working in good faith to comply with the legislative directive to change the methodology for evaluating the biological health of waterbodies. And third, West Virginia has a credible plan with the EPA to develop TMDLs to specifically address ionic toxicity.

    The court cautioned that while West Virginia had not yet made a “constructive submission” of no TMDLs for ionic toxicity, further delays in the implementation schedule may change that conclusion.

    This decision should be considered a victory for West Virginia’s efforts to address the complex issue of biological impairment and ionic toxicity, which has broad implications for all industrial and commercial operations that hold water discharge permits. The decision also supports the role of the states, rather than the EPA, as the primary regulators of water quality within their borders.

    For questions about the Fourth Circuit’s decision or the Clean Water Act in general, please contact Robert M. Stonestreet at 681.265.1364 or [email protected] or Christopher B. (“Kip”) Power at 681.265.1362 or [email protected]

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